United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE
pro se petitioner, Gary Zierke
(“Zierke”), filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241. ECF No. 1.
Petitioner is a federal inmate formerly incarcerated at FCI
Gilmer in Glenville, West Virginia, and now housed at U.S.P.
Hazelton in Bruceton Mills, West Virginia. In his petition,
Petitioner challenges the validity of his conviction and
sentence from the United States District Court for the
District of Nebraska. ECF No. 1. The petitioner asserts that
his conviction should be set aside and further alleges that
his sentence is no longer valid. Id. at 5. For
relief, petitioner requests a “show cause order from
the government, ” that the closing arguments of his
trial be ordered, a “transfer to U.S. District Court
for evidentiary hearing, ” and to appoint counsel.
Id. at 9.
action was referred to United States Magistrate Judge James
P. Mazzone for initial review and report and recommendation
pursuant to Local Rule of Prisoner Litigation Procedure 2.
The magistrate judge filed a report and recommendation
recommending that petition be denied and dismissed without
prejudice. ECF No. 11. The magistrate judge informed the
petitioner that if he objected to any portion of the report
and recommendation, he was required to file specific written
objections within 14 days after being served with a copy of
the report and recommendation. The petitioner then filed
untimely objections. ECF No. 13.
reasons that follow, this Court finds that the report and
recommendation of the magistrate judge should be adopted in
28 U.S.C. § 636(b)(1)(C), this Court must conduct a
de novo review of any portion of the magistrate
judge's recommendation to which an objection is timely
made. As to those findings to which timely objections were
not filed, all findings and recommendations will be upheld
unless they are “clearly erroneous or contrary to
law.” 28 U.S.C. § 636(b)(1)(A).
the petitioner filed untimely objections to the report and
recommendation, all findings and recommendations of the
magistrate judge will be upheld unless they are
“clearly erroneous or contrary to law.” Upon
review of the report and recommendation, this Court finds no
clear error in the determinations of the magistrate judge and
thus upholds his recommendation to deny the petition and
dismiss the petition without prejudice.
stated above, this Court finds that although the petitioner
did file objections to the magistrate judge's report and
recommendation, the objections were not timely filed. In
reviewing the record, this Court finds that the service of
the magistrate judge's report and recommendation was
accepted on June 26, 2019. ECF No. 12. Petitioner's
objections were filed on July 15, 2019. ECF No. 13. Thus, the
petitioner's objections are untimely.
this Court additionally notes that even if the petitioner had
timely filed his proposed objections to the report and
recommendation, it would not impact this Court's
decision. In considering petitioner's untimely objections
under a de novo review, this Court finds that to the
extent that Zierke is challenging his conviction, even if he
satisfied the first and third elements of
Jones, the crimes for which he was convicted
remain criminal offenses, and therefore, he cannot satisfy
the second element of Jones. Further, because
petitioner is challenging his sentence in a § 2241, he
must meet all four prongs of the test established in
United States v. Wheeler, 886 F.3d 415 (4th Cir.
2018), for this Court to have jurisdiction to hear his
challenge on the merits. In his recommendation, the
magistrate judge correctly found that the petitioner fails to
meet the fourth prong of the Wheeler test which
requires a showing that due to a retroactive change in the
law, his sentence now presents an error sufficiently grave to
be deemed a fundamental defect. Lester v. Flournoy,
909 F.3d 708, 715 (4th Cir. 2018).
petitioner's untimely objections to the magistrate
judge's report and recommendation, the petitioner
generally objects to the magistrate judge's analysis of
Wheeler, and ultimately reiterates his previous
argument relying on McCoy v. Louisiana, 136 S.Ct.
821 (2018), in stating that this Court has jurisdiction under
the savings clause. ECF No. 13 at 2. Further, Zierke restates
his assertion that he was sentenced to an illegal sentence
and must be re-sentenced. Id. at 3.
address these objections, this Court finds that the
magistrate judge expressly noted that because the
requirements of the savings clause are jurisdictional, a
§ 2241 petitioner relying on the § 2255(e) savings
clause must meet the Jones test (if challenging the
legality of his conviction) or the Wheeler test (if
challenging the legality of his sentence) for the court to
have subject-matter jurisdiction to evaluate the merits of
the petitioner's claims. Wheeler, 886 F.3d at
Wheeler, the United States Court of Appeals for the
Fourth Circuit concluded that § 2255(e) provides
“an avenue for prisoners to test the legality of their
sentences pursuant to § 2241, and Jones is
applicable to fundamental sentencing errors, as well as
undermined convictions.” Id. at 428. When
contesting a sentence through a petition filed under §
2241, a petitioner still must meet the savings clause of
§ 2255. In the Fourth Circuit, § 2255 is deemed to